New rights for same-sex married couples (UPDATED)

The text of the attorney general’s new Justice Department policy directive on the recognition of same-sex marriages was published Monday; it can be read here.

The document provides additional details on the changes in policy in several areas that the attorney general discussed in his Saturday night speech, but also mentions a few new changes.

The most extensive new explanation describes how Justice Department lawyers will navigate between two different views of marriage — one federal, one state — in dealing with a spouse’s claim of the legal privilege of marital confidentiality and the legal privilege of marital testimonial immunity.

The two will be in play, the new directive said, in some civil cases that involve same-sex couples that the federal government recognizes as valid but that are not recognized as valid under the state law in that particular locale. This results from the fact that a federal rule of evidence for civil cases looks to state law to determine who is entitled to the privileges at issue, since each privilege is available only to validly married spouses.

The directive indicates that, when the federal government is a party in a civil case, it will not resist a claim of privilege from a same-sex marital partner even though that marriage lacks official recognition in that state.

In criminal cases in general, the directive said, the Department will follow a rule of “federal common law” that will be treated as recognizing the validity of same-sex marriages, if they were valid in the place where they were licensed, even if the couple lives in a state where their marriage is not recognized.

The directive briefly mentions two other new policy initiatives in keeping with the attorney general’s overall policy. First, whenever a criminal law depends upon marital status — for example, entering a marriage to defeat an immigration law order — same-sex married couples will get equal treatment. The directive lists several other such laws.

Second, the directive noted that the federal agency that supervises firearms, explosives, alcohol., and tobacco, and issues federal licenses to dealers, has now changed its policy so that a married same-sex spouse will be allowed to carry on the license’s business after the other spouse has died.

A final note in the directive says that what it discusses is not intended to be an exhaustive list of the Department’s efforts to carry out the new marital equality policy.

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Below is the text published by the blog about Holder’s weekend speech.

Using government powers already available, Attorney General Eric Holder Jr. plans to expand the legal rights of same-sex couples who are already married, guaranteeing equality in fields ranging from the rights of debtors to individuals serving time in prison, he announced in a speech Saturday night in New York City. He said he would issue a formal legal memorandum on Monday requiring that, in every activity in which his department engages dealing with marital rights, same-sex couples will be given full equality.

“In every courthouse, in every proceeding, and in every place where a member of the Department of Justice stands on behalf of the United States,” Holder vowed, “they will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law.” He also stressed that this will be true, in some situations, for such couples who live in states where their marriages are not officially accepted, so long as federal law is at issue.

This effort, he told a dinner gathering of the Human Rights Campaign, a gay rights advocacy group, is intended “to give real meaning” to the Supreme Court’s decision last June in United States v. Windsor, striking down a part of the federal Defense of Marriage Act that denied federal marital benefits to legally married same-sex couples.

He did not spell out in full all of the measures his department will take, but did provide a few details on these initiatives:

** Each spouse in a same-sex marriage will gain the right in civil and criminal cases in court to decline to give testimony against the other spouse — the so-called “marital privilege” that is an exception to compelled testimony. That will apply even in states that would not extend the same right to same-sex couples under state law.

** In bankruptcy cases, same-sex couples will be allowed to file jointly for relief from their debts, some debts owed by one spouse or former spouse to another will not be nullified (“discharged,” in legal terms), and domestic support obligations — such as alimony owed to a former spouse — will have to be paid.

** Inmates in federal prisons who are married to a same-sex spouse will have equal rights and privileges, including visitation rights, inmate furloughs to be with a spouse during “a crisis,” a right of a spouse to be escorted to the funeral of an inmate spouse who dies, protection for letters and other communications between spouses, and early release of an inmate from a sentence or a reduction in sentence to allow the inmate to be with a spouse who has become incapacitated.

** If a benefits program is run by the Justice Department — for example, compensation for a spouse’s exposure to radiation and for the loss of a spouse during the terrorist attacks of September 11, 2001 — same-sex couples will become entitled to those benefits.

** If spouse is or was as a police officer, firefighter, or other public safety officer and is killed or gravely injured in the line of duty, the surviving spouse will receive death benefits if the spouse dies and will receive educational benefits.

It does not appear that any of those guarantees of rights or benefits would add to what married same-sex couples had won in the Supreme Court’s Windsor decision, because the part of that law struck down by the Court imposed a ban on equality for same-sex couples in every federal program or activity.

But the new moves by Holder, and similar equality initiatives that a spreading variety of federal agencies have already adopted, are designed to translate that sweeping Court victory into everyday reality.

It appears that none of the new gestures would require Holder to go to Congress for new legislation to authorize the steps.

The attorney general made a specific point of saying that the announced plans for the Monday policy directive are not the final ones the government will be taking to implement the Windsor ruling.

Current Relists

Conference of November 16, 2018

Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

Major Cases

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.